COMMrTTEE ON RULES OF PRACTICE AND PROCEDUREOF THE

JUDICIAL CONFERENCE OF THE UNTrED SRTATESADMINISTRATIVE OFFICE OF THE

UNITED STATES COURTSWASFINGTON, D. C. 20544

TO THE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE:

I have the honor of submitting herewith our Committee's final draftof proposed amendments of Rules 6, 45(d)(2), 52(a), 71A(h), 83;Supplementary Rules B(l), C(3), and E(4)(f) for Certain Admiralty andMaritime Claims; and an amendment to Official Form 18-A, with therecommendation that they be approved and presented to the JudicialConference for action.

These proposed amendments represent the fruits of almost two yearsof thorough study in the course of which our Committee has had the benefitof the views of numerous judges, lawyers and other citizens, both bv letterand at public hearings in Washington, D. C., and Los Angeles, California, inresponse to a wide distribution of earlier drafts for criticism and comment.

The proposed changes may be summarized as follows:

Rule 6: The amendment would alleviate some of the hardshipexperienced under the present provision's allowance of inadequatetime for response to motions because of its inclusion of Saturdays,Sundays and legal holidays when the period for response is more than7 davs and because of its failure to allow for weather or otherconditions causing the office of the clerk to be inaccessible. Theperiod has been increased from 7 to 11 days and is extended whenthe clerk's office is inaccessible on the last dav of the period. TheBirthday of Maotin Luther King, Jr., which becomes a legal holidayon the third Monday of January 1986, has also been added to the listof legal holidays mentioned in the rule.

Rule 45(dX2): The amendment would eliminate anomaloussituations occurring under the present provision, which requires aperson who resides, is employed or transacts business in a county totravel from one end of the county to the other, but not acrosscounty lines, for the taking of a deposition whereas a non-residentmay be required to attend either in the county where served orwithin 40 miles from the olace of service. The amendment would

eliminate this discrimination by requiring anv person, resident ornon-resident, to attend within 100 miles from the place of service,residence, employment or business.

Rule 52(a. The amendment would resolve confusion andconflicts between circuits as to the standard for appellate review ofcases based solely on documentary evidence by providing that suchcases are to be governed by the "clearly erroneous" standard.

Rule 71A: Various provisions are prooosed to insure that ingovernment land condemnation proceedings the efficiency of the"commission" method of determining just comDensation will beimproved. The principal changes would permit the appointment ofalternate commissioners to replace any commissioner who becomesunable to continue during trial and insure that qualified persons willbe appointed to serve as commissioners.

Rule 83: The amendments would enhance the local rule-making process (1) by requiring public notice and an opportunity forcomment before new local rules are adoDted, (2) by authorizing thejudicial council of a circuit to abrogate a local rule, and (3) byobligating judges and magistrates not to regulate practice beforethem (e.g., by "standing orders") inconsistently with federal or localrules. Copies of local rules would be furnished to the judicialcouncil of the circuit and to the Administrative Office rather thanto the Supreme Court.

Admiralty Rldes B(I), C(3), and E(4Xf): These rules have been

amended to insure compliance with principles of due processenunciated in a line of Supreme Court decisions beginning withSniadach v. Family Finance CorD., 395 U.S. 337 (1969), and developedin Fuentes v. Shevin, 407 U.S. 67 (1972), in view of questions raisedby some decisions holding the present provisions to beunconstitutional.

TECHNICAL CHANGES:

The following minor changes have been made in AdmiraltyRule B(l) and Form 18-A, for which the Committee does not believethat the notice and comment procedure was necessary:

(1) The last sentenee of Form 18-A (Notice to beenclosed with summons and complaint served by mail) presentlyrequires the person mailing the summons and complaint toacknowledge incorrectly, before the mailing, that the enclosedNotice and Acknowledgment "was served" before mailing. Thelanguage is therefore changed to read "will have been Mailed."

(2) The word "manner" in the third line of theAcknowledgment, which is a typographical error, has been changedto "matter."

(3) The word "complaint" in Admiralty Ruie B(l), line 6,has been changed to "process" in order to eliminate a requirementfor additional review of the complaint and affidavit when agarnislhee is added.

We believe that the attached amendments, if adopted, willserve to improve procedural efficiency in the administration of justice byour federal courts,

We are not now seeking approval of proposed amendments of

Rules 68 and 5 that were distributed in August 1983 for public comment

because we have prepared a redraft of those proposals in response to publiccomments and now desire to obtain public reaction to our Committee'sredraft. Although the earlier draft received substantial favorable supportas a means of reducing litigation delay and expense, it was also opposed,mainly on the grounds that (1) it might violate the Rules Enabling Act, 28U.S.C. §2072, by providing for shifting of attorneys' fees; (2) it might tendto weaken Congress' policy expressed in various statutes authorizing theaward of attorneys' fees to prevailing parties in certain types of actions;and (3) it might inhibit the prosecution of civil litigation by impecuniousand contingent-fee plaintiffs unable to finance down-side risks posed bv anoffer. We believe that our redraft, a copy of which will be forwarded toyou shortly, with our request that it be distributed for public comment,meets these objections.

Respectfully submitted,

Walter R. MansfieldChairman, Advisory Committee on

Civil RuZes

July 18, 1984

PROPOSED AMENDMENTSTO THE *

FEDERAL RULES OF CIVIL PROCEDURE

RULE 6. TIMM

1 (a) COMPUTATION. In computing any period of time

2 prescribed or allowed by these rules, by the local rules of any

3 district court, by order of court, or by any applicable statute, the

4 day of the act, event, or default from which the designated period of

5 time begins to run shall not be included. The last day of the period

6 so computed shall be included, unless it is a Saturday, a Sunday, or a

7 legal holiday, or, when the act to be done is the filing of a paper in

8 court, a day on which weather or other conditions have made the

9 office of the clerk of the district court inaccessible, in which event

10 the period rurs until the end of the next day which is not a Satrda&y

a Stidaay er a 4ega1 hev4day one of the aforementioned days. When

12 the period of time prescribed or allowed is less than 7 11 days,

13 intermediate Saturdavs, Sundays, and legal holidays shall be

14 excluded in the computation. As used in this rule and in Rule 77(c),

15 "legal holiday" includes New Year's Day, Birthdav of Martin Luther

16 King, Jr., Washington's Birthday, Memorial Day, Independence Day,

17 Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,

*New matter is underscored; matter to be omitted is lined through.

2 RULES OF CIVIL PROCEDURE

18 Christmas Day, and any other day appointed as a holiday by the

19 President or the Congress of the United States, or by the state in

20 which the district court is held.

21 * * *

COMMENCE NOTE

Rude 6(a) is amended to acknowledge that weather conditions or otherevents may render the clerks office inaccessible one or more days. Partieswho are obliged to file something with the court during that period shouldnot be penalized if they cannot do so. The amendment conforms to changesmade in Federal Rule of Criminal Procedure 45(a), effective August 1, 1982.

The Rule also is amended to extend the exclusion of intermediateSaturdays, Sundays, and legal holidays to the computation of time periodsless than 11 days. Under the current version of the Rule, parties bringingmotions under rules with 10-day periods could have as few as 5 working daysto prepare their motions. This hardship would be especially acute in thecase of Rules 50(b) and (c)(2), 52(b), and 59(b), (d), and (e), which may notbe enlarged at the discretion of the court. See Rule 6(b). If the exclusionof Saturdays, Sundays, and legal holidays will operate to cause excessivedelay in urgent cases, the delay can be obviated by applying to the court toshorten the time. See Rule 6(b).

The Birthday of Martin Luther King, Jr., which becomes a legalholiday effective in 1986, has been added to the list of legal holidaysenumerated in the Rule.

RULE 45. SUBPOENA

1 * * *

2 (d) SUBPOENA FOR TAKING DEPOSITIONS; PLACE OF

3 EXAMINATION.

4 * * *

5 (2) A residet of 4he j4et fe4 whieh the depee 4s toebe

6 4taken "ay be teqfed 4e a4end an exaft-L4eto oiay 4iB the eeotwy

7 where4 19he tesdes of 4e emeed or +Tameae+ his Fug~iless 4n ese

8 r at stleh hthef eenvefmen- piaee as 5 i-ied by an erder ef eeut-- A

9 mene4derAt of thie misb4et m heq"d te attend ef4y 4f the

RULES OF CIVIL PROCEDJRE 3

10 eetrny whereiii le has served with a subpeena- or with4in 40 m-iAes freom

11 the paee ef sei6ee- er ao te se ether eevet4eftr seee as 4A axed by

1 2 an order ei eeti+. A person to whom a subpoena for the taking of a

13 desposition is directed may be required to attend at any place within

14 100 miles from the place where that person resides, is employed or

15 transacts business in person, or is served, or at such other

16 convenient place as is fixed by an order of court.

17 The clerk of the district in which the deposition is to be taken

18 shall issue a subpoena requiring the attendance of the witness. The

19 subpoena may be served in the same locations with reference to the

20 place of deDosition as those specified in subdivision (e) of this rule

21 with reference to the place of a hearing or trial.

2 2

COMMITEE NOTE

Present 'Pe 45(d)(2) has two sentences setting forth the territorialscope of deposition subpoenas. The first sentence is directed to depositionstaken in the judicial district in which the deponent resides; the secondsentence addresses situations in which the deponent is not a resident of thedistrict in which the deposition is to take place. The Rule, as currentlyconstituted, creates anomalous situations that often cause logisticalproblems in conducting litigation.

The first sentence of the present Rule states that a deponent may berequired to attend only in the county wherein that person resides or isemployed or transacts business in person, that is, where the person lives orworks. Under this provision a deponent can be compelled, without courtorder, to travel from one end of that person's home county to the other, nomatter how far that mav be. The second sentence of the Rule is somewhatmore flexible, stating that someone who does not reside in the district inwhich the deposition is to be taken can be required to attend in the countywhere the person is served with the subpoena, or within 40 miles from theplace of service.

4 RULES OF CIVIL PROCEXJDRE

Under today's conditions there is no sound reason for distinguishing

between residents of the district or county in which a deposition is to be

taken and non-residents, and the Rule is amended to provide that anv

person may be subpoenaed to attend a deposition within a specified radius

from that person's residence, place of business, or where the person was

served. The 40-mile radius has been increased to 100 miles.

The second sentence has been added to make Rule 45(d)(2) parallel

Rule 45(e)(1) with regard to service of subpoenas for depositions, hearings,

and trials. It also fills the gap in Rule 45(d)(2) for service of a subpoena

outside the district for the taking of a deposition noted by the court in In re

Guthrie, -F. 2d _ (4th Cir. 1984).

RULE 52. FINDINGS BY THE COURT

I (a) EFFECT. In all actions tried upon the facts without a jury

2 or with an advisory jurv, the court shall find the facts soecially and

3 state separately its conclusions of law thereon, and judgment shall

4 be entered pursuant to Rule 58; and in granting or refusing

5 interlocutory injunctions the court shall similarly set forth the

6 findings of fact and conclusions of law which constitute the grounds

7 of its action. Requests for findings are not necessary for purposes

8 of review. Findings of fact, whether based on oral or documentary

9 evidence, shall not be set aside unless clearly erroneous, and due

10 regard shall be given to the opportunity of the trial court to judge of

11 the credibility of the witnesses. The findings of a master, to the

12 extent that the court adopts them, shall be considered as the

13 findings of the court. It will be sufficient if the findings of fact and

14 conclusions of law are stated orallv and recorded in open court

1i following the close of the evidence or appear in an opinion or

16 memorandum of decision filed bv the court. Findings of fact and

RULES OF CIVIL PROCEDURE

17 conclusions of law are unnecessary on decisions of motions under

18 Rules 12 or 56 or any other motion excent as provided in Rule 41%).

* * *

COMMW1TEE NOTE

Rule 52(a) has been amended (1) to avoid continued confusion andconflicts among the circuits as to the standard of appellate review offindings of fact by the court, (2) to eliminate the disparity between thestandard of review as literally stated in Rule 52(a) and the practice of somecourts of appeals, and (3) to promote nationwide uniformity. See Note,Rule52(ah Appellate Review of Findings of Fact Based on Documentary orUndisputed Evidence, 49 Va. L. Rev. 506, 536 (1963).

Some courts of appeal have stated that when a trial court's findingsdo not rest on demeanor evidence and evaluation of a witness' credibility,there is no reason to defer to the trial court's findings and the appellatecourt more readily can find them to be clearly erroneous. See, e.g.,M arcum v. United States, 621 F.2d 142, 144-45 (5th Cir. 1980). Others gofurther, holding that appellate review may be had without application ofthe "clearly erroneous" test since the appellate court is in as good aposition as the trial court to review a purely documentary record. See,e.a., Atari, Inc. v. North American Philips Consumer Electronics Corp., 672F.2d 607, 614 (7th Cir.), cert. denied, 459 U.S. 880 (1982); Lydle v. UnitedStates, 635 F.2d 763, 765, n. 1 (6th Cir. 1981); Swanson v. Baker Indus., Inc.,615 F.2d 479, 483 (8th Cir. 1980); Taylor v. Lombard, 606 F.2d 371, 372 (2dCir. 1979), cert. denied, 445 U.S. 946 (1980); Jack Kahn Music Co. v.Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979); John R.ThomDson Co. v. United States 477 F.?d 164, 167 (7th Cir. 1973).

A third group has adopted the view that the "clearly erroneous" ruleapplies in all nonjury cases even when findings are based solev ondocumentary evidence or on inferences from undisputed facts. See, e.g.,Maxwell v. Sumner 673 F.2d 1031, 1036 (9th Cir.), cert. denied, 459 U. S.976 (1982); United States v. Texas Education Agency, 647 F.2d 504, 506-07(5th Cir. 1981), cert. denied, 454 U. S. 1143 (1982); Constructora Maza, Inc. v.Banco de Ponee, 616 F.2d 573, 576 (1st Cir. 1980); In re Sierra Trading Corp.,482 F.2d 333, 337 (10th Cir. 1973); Case v. Morrisette, 475 F.2d 1306-07 (D.C. Cir. 1973).

The commentators also disagree as to the proper interpretation of theRule. Compare Wright, The Doubtful Omniscience of ADpellate Courts, 41Minn. L. Rev. 751, 769-70 (1957) (language and intent of Rule support viewthat "clearly erroneous" test should apply to all forms of evidence), and 9

b RULES OF CIVIL PROCEDURE

C. Wright & k. Miller, Federal Practice and Procedure: Civil §2587, at 740

(1971) (languL2We -f the Rule is clear), with 5A J. Moore, Federal Practice

1152.04, 2687- -4 '2d ed. 1982) (Rule as written supports broader review of

findings based ov non-demeanor testimony).

The Supreme CouiK has not clearly resolved the issue. See, Bose

Corporation v- Consume' Union of United States, Inc., _ L. Ed. _, 52

U.S.L. . 4513, 4517 (ay 1,1984); Pullman Standard v. Swint, 456 U.S. 273,

293 (1982); United States v. General Motors CorD., 384 Ui.S. 127, 141 n. 16

(1966); United States v. United States Gvsum Co., 333 U.S. 364, 394-96

(1948).

The principal argument advanced in favor of a more searching

appellate review of findings by the district court based solely on

documentar, evidence is that the rationale of Rule 52(a) does not apply

when the findings do not rest on the trial court's assessment of credibility

of the witnesses but on an evaluation of documentary proof and the drawingy

of inferences from it, thus eliminating the need for any special deference

to the trial court's findinps. These considerations are outweighed by the

public interest in the stability and judicial econcmy that would be promoted

by recognizing that the trial court, not the appellate tribunal, should be the

finder of the facts. To permit courts of appeals to share more actively in

the fact-findina function would tend to undermine the legitimacy of the

district courts in the eves of iitigants. multiply appeals by encouramrnrg

appellate retrial of some factual issues, and needlessly reallocate judicial

aut hor it v.

RULE 7LA. CONDEMNATION OF PROPERTY

1 * * *

2 (h) TRIAL. If the action invoives the exercise of the power of

3 eminent domain under the law of the Unr.ited States, anv tribunal

specially constituted by an Act of Congress governing the case for

5 the trial of the issue of just compensation shall be the tribunal for

6 the determination of that issue; but if there is no such specially

7 constituted tribunal any party may have a trial by jury of the issue

8 of just compensation by filing a demand therefor within the time

4 allowed for ans;wer or within s uch further time as the court may fix,

RUJLES OF CIVIL PWOCEDURE 7

1i unless the court in its discretion orders that, because of the

11 character, location, or quantity of the Dropertv to be condemned, or

12 for other reasons in the interest of justiee, the issue of

13 compensation shall be determined by a commission of three persons

14 a ppoi nt ed bv i t.

15 In the event that a commission is appointed the court mav

16 direct that not more than two additional persons serve as alternate

17 commissioners to hear the case and replace commissioners who,

18 prior to the time when a decision is filed, are found by the court to

19 be unable or disqualified to perform their duties. An alternate who

20 does not replace a regular commissioner shall be discharged after

21 the commission renders its final decision. Before appointing the

22 members of the commission and alternates the court shall advise the

23 parties of the identity and qualifications of each orospective

24 commissioner and alternate and may permit the parties to examine

25 each such designee. The parties shall not be permitted or required

26 by the court to suggest nominess. Each party shall have the right to

27 object for valid cause to the aDpointment of any person as a

28 commissioner or alternate. If a commission is appointed it shall

29 have the powers of a master provided in subdivision (c) of Rule 53

30 and proceedings before it shall be governed by the provisions of

31 paragraphs 0) and (2) of subdivision (d) of Rule 53. Its action and

32 report shall be determined by a majority and its findings and report

a RULES OF CIVIL PREDLJRE

33 shall have the effeet, and be dealt with bty the court in accordance

34 with the practice, prescribed in paragraoh (2) of subdivision (e) of

A5 Rule 53. Trial of ait issues shall otherwise be by the court.

36 * *

COMMnITEE NOTE

Rule 71A(h) provides tha, except when Congress has provided

otherwise, the issue of just compensation in a condemnation case may be

tried by a jury if one of the parties so demands, unless the court in its

discretion orders the issue determined by a commission of three persons. In

1980, the Comptroller General of the United States in a Report to Congress

recommended that use of the commission procedure should be encouraged

in order to improve and expedite the trial of condemnation cases. The

Report noted that long delays were being caused in manv districts by such

factors as crowded dockets, the precedence given criminal cases, the low

priority accorded condemnation matters, and the high turnover of Assistant

United States Attornevs. The Report concluded that revising Rule 71A to

make the use of the commission orocedure more attractive might alleviate

the sit uati on.

Aecordingly, Rule 71A(h) is being amended in a number of respects

designed to assure the quality and utility of a Rule 71A commission. First,

the amended Rule will give the court discretion to appoint, in addition to

the three members of a commission, up to two additional persons as

alternate commissioners who would hear the case and be avaliable, at any

time un to the filing of the decision by the three-member commission, to

replace- any commissioner who becomes unable or disqualified to continue.

Prior to replacing a commissioner an alternate would not be present at, or

participo le in, the commission's deliberations.

The discretion to apnoint alternate commissioners can be particularly

useful in Drotraotec' cases, avoiding expensive retrials that have been

required in some cases because of the death or disability of a

commissioner. Second, the amended Rule requires the court, before

appointment, to advise the parties of the identity and qualifications of each

prospective commissioner and alternate. The court mav then authorize the

examination of prospective appointees by the parties and each party has

the right to challenge for cause. The objective is to insure that unbiased

and competent commissioners are appointed.

The amended Rule does not prescribe a qualification standard for

appointment to ti erammission, although it s understood that only persons

RULES OF CIVIL PRCEDUR 9

possessing background and ability to aporaise real estate valuation

testimony and to award fair and just compensation on the basis thereof

would be appointed, In most situations the chairperson should he a lawyer

and all members should have some background qualifying them to weigh

proof of value in the real estate field and, when possible, in the particular

real estate market embracing the land in question.

The amended Rule should give litigants greater confidence in the

commission procedure by affording them certain rights to participate in the

appointment of commission members that are roughly comparable to the

practice with regard to jurv selection. This is accomplished by giving the

court permission to allow the parties to examine prospective comissioners

and by recognizing the right of each party to object to the appointment of

any person for cause.

RULE 83. RULES BY DISTRICT COURTS

1 Each district court by action of a majority of the judges

2 thereof may from time to time, after giving appronriate public

3 notice and an opportunity to comment, make and amend rules

4 governing its practice not inconsistent with these rules. A local rule

50 adopted shall take effect upon the date specified hv the district

6 court and shall remain in effect unless amended by the district court

7 or abrogated by the judicial council of the circuit in which the

8 district is located. Copies of rules and amendments so made by any

9 district court shall upon their promulgation be furnished to the

1 0 Supweme eati4 ef Pbe Wr4ie f Sta+es judicial council and the

11 Administrative Office of the United States Courts and be made

12 available to the public. In all cases not provided for bv rule, the

13 district ee-ts judges and magistrates may regulate their practice in

14 anv manner not inconsistent with these rules or those of the district

15 in which thev act.

10 RULES OF CIVIL PROCEDURE

COMMIITEE NOTE

Rule 83, which has not been amended since the Federal Rules werepromulgated in 1938, permits each district to adoDt local rules notinconsistent with the Federal Rules by a majority of the judges. The onlyother requirement is that copies be furnished to the Supreme Court.

The widespread adoption of local rules and the modest proceduralprerequisites for their promulgation have led many commentators toquestion the soundness of the process as well as the validity of some rules.See 12 Wright & Miller, Federal Practice and Procedure: Civil §3152, at 217(1973); Caballero, Is There an Over-Exercise of Local Rule-Making Powersby the United States District Courts?, 24 Fed. Bar News 325 (1977).Althcugh the desirability of local rules for promoting uniform practicewithin a district is widely accepted, several commentators also havesuggested reforms to increase the quality, simplicity, and uniformitv of thelocal rules. See, Note, Rule 83 and the Local Federal Rules, 67 Colum. L.Rev. 1251 (1967), and Comment, The Local Rules of Civil Procedure in theFederal District Courts--A Survey, 1966 Duke L.J. 1011.

The amended Rule attempts, without impairing the proceduralvalidity of existing local rules, to enhance the local rulemaking process byrequiring appropriate public notice of proposed rules and an opDortunitv tocomment on them. Although some district courts aDparently consult the)oca) bar bef ore promulgating rules, many do not, which hasled to criticism

of a process that has district judges consulting only with each other. See 12Wrig'ht & Milier, gupra, §3152, at 277; Blair, The New Local Rules forFederal Practice in Iowa, 23 Drake L. Rev. 517 (1974). The new languagesubjects local rulemaking to scrutiny similar to that accomnanying theFederal Rules, administrative rulemaking, and legislation. It attempts toassure that the expert advice of practitioners and scholars is madeavailable to the district court before local rules are promulgated. SeeWeinstein, Reform of Court Rule-Making Procedules 84-87, 127-37, 151(1977).

The amended Rule does not detail the procedure for giving notice andan opportunity to be heard since conditions vary from district to district.Thus, there is no explicit requirement for a public hearing, although adistrict mav consider that procedure appropriate in all or some rulemakingsituations. See generallv, Weinstein, supra, at 117-37, 151. The new Ruledoes not foreclose anv otherform of consultation. For example, it can beaccomplished through the mechanism of an "Advisory Committee" similarto that employed by the Supreme Court in connection with the FederalRules themselves.

RULES OF CIVIL PROCEDURE

The amended Rule provides that a local rule will take effect upon thedate specified by the district court and will remain in effect unlessamended by the district court or abrogated by the judicial council. The

effectiveness of a local rule should not be deferred until approved by thejudicial council because that might unulb' delay promulgation of a localrule that should become effective imm dately, especially since somecouncils do not meet frequently. Similarly, it was thought that to delay alocal rule's effectiveness for a fixed Deriod of time would be arbitrary andthat to require the judicial council to abrogate a local rule within aspecified time would be inconsistent with its power under 28 U.S.C. §332(1976) to nullify a local rule at any time. The expectation is that thejudicial council will examine all lknel rules, including those currently ineffect, with an eve toward determining whether they are valid andconsistent with the Federal Rules, promote inter-district uniformity andefficiency, and do not undermine the basic objectives of the Federal Rules.

The amended Rule requires copies of local rules to be sent upon theirpromulgation to the judicial council and the Administrative Office of theUnited States Courts rather than to the Supreme Court. The SuoremeCourt was the appropriate filing place in 1938, when Rule 83 originallv wasDromulgated, but the establishment of the Administrative Office makes it amore logical place to develop a centralized file of local rules. Thisprocedure is consistent with both the Criminal and the Appellate Rules.See Fed. R. Crim. P. 57(a); Fed. R. App. P. 47. The Administrative Officealso will be able to provide improved utilization of the file because of itsrecent developm ent of a Local Rules Index.

The Dractice pursued by some judges of issuing standing orders hasbeen controversial, particularly among members of the practicing bar. Thelast sentence in Rule 83 has been amended to make certain that standingorders are not inconsistent with the Federal Rules or anv local districtcourt rules. Beyond that, it is hoped that each district wig' adootprocedures, perhaps by local rule, for promulgating and reviewing single-judge standing orders.

RULES OF CIVIL PROCEDURE

PROPOSED AMENDMENTS TO THE SUPPLEMENTAL RULESFOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

Committee's Explanatory Statement

Since their promulgation in 1966, the Supplemental Rules for Certain

Admiralty and Maritime Claims have preserved the special Drocedures of

arrest and attachment unique to admiralty law. In recent years, however,

these Rules have been challenged as violating the principles of procedural

due process enunciated in the United States Supreme Court's decision in

Sniadach v. Family Finance (CorD., 395 U.S. 337 (1969), and later developed

in Fuentes v. Shevin, 407 U. S. 67 (1972); Mitchell v. W. T. Grant Co., 416

U. S. 600 1974); and North Georgia Finishing, Inc. v. Di-Chem Inc., 419U. S. 601 (1975). These Supreme Court decisions provide five basic criteria

for a constitutional seizure of property: (1) effective notice to persons

having interests in the property seized, (2) judicial review prior to

attachment, (3) avoidance of conclusory allegations in the complaint, (4)

security posted by the plaintiff to protect the owner of the property underattachment, and (5) a meaningful and timely hearing after attachment.

Several commentators have found the Supplemental Rules lacking on

some or all five grounds. E.g., Batiza & Partridge, The ConstitutionalChallenge to Martime Seizures, 26 Lov. L. Rev. 203 (1980); Morse, The

Conflict Between the Supreme CouI't Admiralty Rules and Sniadach-

Fuentes: A Collision Course?, 3 Fla. St. U.L. Rev. 1(1975). The federal

courts have varied in their disposition of challenges to the SupplementalRules. The Fourth and Fifth Circuits have affirmed the constitutionality of

Rule C. Arnstar Corp. v. S/S Alexandros T., 664 F.2d 904 (4th Cir. 1981);

Merchants National Bank of Mobile v. The Dredge General G. L. GillesDie,663 F.2d 1338 (5th Cir. 1981), cert. dismised, 456 U.S. 966 (1982). However,a district court in the Ninth Circuit found Rule C unconstitutional.Alveska Pipeline Service Co. v. The Vessel Bay Ridge, 509 F. Supn. 1115 (D.

Alaska 1981), appeal dismissed, 703 F.2d 381 (9th Cir. 1983). Rule B(l) has

received similar inconsistent treatment. The Ninth and Eleventh Circuitshave upheld its constitutionalitv. Polar Shinning, Ltd. v. Oriental ShippingCorp., 680 F.2d 627 (9th Cir. 1982); Schiffahartsgesellschaft Leonhardt &

Co. v. A. Rottacchi S. A. de Navegacion, 732 F.2d 1543 (llth Cir. 1984). On

the other hand, a Washington district court has found it to beconstitutionally deficient. Grand Bahama Petroleum Co. v. CanadianTransportation Agencies, Ltd., 450 F. Supp. 447 (W.D. Wash. 1978). Theconstitutionality of both rules was questioned in Techem Chem Co. v. M/TChovo Maru, 416 F. Supp. 960 (F). Md. 1076). Thus, there is uncertainty asto whether the current rules Drescribe constitutionally sound procedures forguidance of courts nd coutinsel. See generally Note, Due Process in

Admiraltv Arrest and Att~ichinent, 56 Tex. L. Rev. 1091 (1978).

RULES OF CIVIL PROCEDURE1 3

Due to the controversy and uncertainty that have surrounded theSupplemental Rules, local admiralty bars and the Maritime Law Associationof the United States have sought to strengthen the constitutionality ofmaritime arrest and attachment by encourgaging promulgation of localadmiralty rules providing for prompt post-seizure hearings. Some districtsalso adopted rules calling for judicial scrutiny of applications for arrest orattachment. Nonetheless, the result has been a lack of uniformity andcontinued concern over the constitutionality of the existing practice. Theam endm ents that follow are intended to provide rules that meet therequirements prescribed by the Supreme Court and to develop uniformity inthe admiralty practi ce.

RULE B. ATTACHMIENT AND GARNISHMIENT:SPECIAL PROVISIONS

(1) WHEN AVAILABLE; COMPLAINT, AFFIDAVIT, JUDICIAL

AUTHORI7MATION' AND PROCESS. With respect to any admiralty

3 or maritime claim in personam a verified complaint may contain a

praver for process to attach the defendant's goods and chattels, or

5 credits and effects in the hands of garnishees to be named in the

6 eemp4aiM process to the amount sued for, if the defendant shall not

7 be found within the district. Such a complaint shall be accompanied

8 by an affidavit signed by the plaintiff or his attorney that, to the

9 affiant's knowledge, or to the best of his information and belief, the

10 defendant cannot he found within the district. The verified

l complaint and affidavit shall be reviewed by the court and, if the

12 conditions set forth in this rule appear to exist, an order so stating

13 and authorizing process of attachment and garnishment shall issue.

1 When a veP4fed eemaep4R 4s stppef4ed w steeen an ffidav4-t the e-4etF

13 5 sha44 fethA1 4-ste a summewts and ",eeese ef a.taellmem and

16 gekmee Supplemental process enforcing the court's order may

l 7 be issued bv the clerk upon aDpl1cation without further order of the

cour. If the Dlaintiff or t torrnev c''rtifies that exigent

14 RUJLES OF CIVIL PROCEIDIRE

19 circumstam es make review by the court impracticable, the clerk

20 shall isue a summons and process of attachment and garnishment

21 and the plaintiff shall have the burden on a post-attachment hearing

22 under Rule E(4)) to show that ege cut sxisted. In

23 addition, or in the alternative, the plaintiff may, pursuant to Rule

24 4(e), invoke the remedies provided by state law for attachment and

25 garnishment or similar seizure of the defendant's property. Except

26 for Rule F(8, these Supplemental Rules do not apply to state

27 remedies so invoked.

28 * * *

COMM=I-TE NOTE

Rule B(1) has been amended to provide for iudical scrutinv before the

issuance of anv attachment or garnishment orocess. Its purpose is to

eliminate doubts as to whether the Rule is consistent with the principles of

procedural due process enunciated by the Supreme Court in Sniadach v.

Family Finance Corp., 395 U. S. 337 (1969); and later developed in Fuentes

v. Shevin, 407 U.S. 67 (1972); Mitchell v. W. T. Grant Co., 416 U. S. 600

(1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc. 419 U. S. 601

0975). Such doubts were raised in Grand Bahama Petroleum Co. v.

Canadian Transportation MAencies, Ltd., 450 F. SUpD. 447 (WAD. Wash.

1978); and SchiffahartsgeselLschaft Leonhardt & Co. v. A. Bottacchi S.A. de

Navegacion, 552 F. SuPo. 771 (S.D. Ga. 1982), which was reversed, 732 F.2d

1543 11lth Cir. 1984). But compare Polar Shioninq Ltd. v. Oriental ShiDDing

Corp., 680 F.2d 627 (9th Cir. 1982), in which a majority of the panel upheld

the constitutionality of Rule B because of the unique commercial context

in which it is invoked. The practice described in Rule B(l) has been adopted

in some districts by local rule. E.g., N.D. Calif. Local Rule 603.3; W.D.

Wash. Local Admiraltv Rule 15(d).

The rule envisions that the order will issue when the plaintiff makes a

prima facie showing that he has a maritime claim against the defendant in

the amount sued for and the defendant is not present in the district. A

simple order with conclusorv findings is contemplated. The reference to

review bv the "court" is broad enough to embrace review by a magistrate as

well as bv a district judge.

RULES OF CIVIL PROCEIXRE 15

The new provision recognizes that in some situations, such as whenthe judge is unavailable and the ship is about to depart from thejurisdiction, it will be impracticable, if not impossible, to secure thejudicial review contemplated by Rule B(l). When "exigent circumstances"exist, the rule enables the plaintiff to secure the issuance of the summonsand process of attachment and garnishment, subject to a later showing thatthe necessary circumstances actually existed. This provision is intended toprovide a safety valve without undermining the requirement of Dre-attachment scrutiny. Thus, every effort to secure judicial review,including conducting a hearing by telephone, should be pursued beforeresorting to the exigent-circumstances procedure.

Rule B(l) also has been amended so that the garnishee shall be namedin the "process" rather than in the "complaint." This should solve theproblem presented in Filia Compania Naviera, S.A. v. Petroship, S.A., 1983A.M.C. 1 (S.D.N.Y. 1982), and eliminate any need for an additional judicialreview of the complaint and affidavit when a garnishee is added.

RULE C. ACTION IN REM: SPECIAL PROVISIONS

1 * * *

2 (3) JUDICIAL AUTHORIZATION AND PROCESS. Except in

3 actions by the United States for forfeitures for federal statutory

4 violations, the verified complaint and any supporting papers shall be

5 reviewed by the court and, if the conditions for an action in rem

6 appear to exist, an order so stating and authorizing a warrant Upem

7 the oii ef 1ihe eei1mnt the eierk shea4* fei-thw4h 4stie a werant

8 for the arrest of the vessel or other orooertv that is the subject of

9 the action shall issue and be delivered to the clerk who shall preDare

10 the warrant and deliver it to the marshal for service. If the

11 property that is the subject of the action consists in whole or in part

12 of freight, or the proceeds of property sold, or other intangible

13 property, the clerk shall issue a summorn directing any person

14 having control of the funds to show cause whv they should not be

15 paid into court to abide the judgment. SupDlemental process

16 RULES OF CIVIL PROCEDURE

16 enforcing the court's order may be issued by the clerk upon

17 application without further order of the court. If the plaintiff or his

18 attorney certifies that exigent circumstances make review bv the

19 court impracticable, the clc. k shall issue a summons and warrant for

20 the arrest and the plaintiff shall have the burden on a post-arrest

21 hearing under Rule E(4)(f) to show that exigent circumstances

22 existed. In actions by the United States for forfeitures for federal

23 statutory violations the clerk, upon filing of the complaint, shall

24 forthwith issue a summons and warrant for the arrest of the vessel

25 or other property without requiring a certification of exigent

2 6 circumstances.

2 7

COMMTTEE NOTE

Rule C(3) has been amnended to provide for judicial scrutiny beforethe issuance of anv warrant of arrest. Its purpose is to eliminate any doubtas to the rule's constitutionality under the Sniadach line of cases. Sniadachv. Famnilv Finance Corp., 395 U.S. 337 (1969); Fuentes v. Shevin 407 U.S. 67(1972); Mitchell v. W1. T. Grant Co., 416 U. S. 600 (1974 ; and North GeorgiaFinishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975). This was thoughtdesirable even though both the Fourth and the Fifth Circuits have upheldthe existing rule. Amstar Corp. v. S/S Alexandros T., 664 F.2d 904 (4thCir. 1981); Merchants National Bank of Mobile v. The Dredge General G. L.Gillespie, 663 F.2d 1338 (5th Cir. 1981), cert. dismissed, 456 U. S. 966T1982 . A contrary view was taken by Judge Tate in Ui'e Merchants NationalBank case and by the district court in Alveska Pikeline Service Co. v. TheVessel Bay Ridge, 509 F. SupD. 1115 (1). Alaska 1981), appeal dismissed, 703F.2d 381 (9th Cir. 1983).

The rule envisions that the order will issue upon a prima facie showingthat the plaintiff has an action in rem against the defendant in the amountsued for and that the Dropertv is within the district. A simple order withconclusory findings is contemplated. The reference to review by the"court" is broad enough to embrace a magistrate as well as a district judge.

RULES OF CIVIL PROCEDURE 17

The new provision recognizes that in some situations, such as when ajudge is unavailable and the vessel is about to depart from the jurisdiction,it will be impracticable, if not impossible, to secure the judiciall reviewcontemplated by Rule C(3). When "exigent circumstances" exist, the ruleenables the plaintiff to secure the issuance of the summons and warrant ofarrest, subject to a later showing that the necessary circumstances actuallyexisted. This provision is intended to provide a safety valve withoutundermining the requirement of pre-arrest scrutiny. Thus, every effort tosecure judicial review, including conducting a hearing by telephone, shKouldbe pursued before invoking the exigent-circumstances procedure.

The foregoing requirements for prior court review or proof of exigentcircumstances do not apply to actions by the United States for forfeituresfor federal statutory violations. In such actions a prompt hearing is notconstitutionally required, United States v. Eight Thousand Eight Hundredand Fifty Dollars, 103 S.Ct. 2005 (1983); Calero-Toledo v. Pearson YachtLeasing Co., 416 U.S. 663 (1974), and could prejudice the government in itsprosecution of the claimants as defendants in parallel criminal proceedingssince the forfeiture hearing could be misused by the defendants to obtainby way of civil discovery information to which they would not otherwise beentitled and subject the government and the courts to the unnecessaryburden and expense of two hearings rather than one.

RULE E. ACIIONS IN REM AND QUASI IN REM:GENERAL PROVISIONS

1 * * *

2 (4) EXECUTION OF PROCESS; MARSHAL'S RETURN;

3 CUSTODY OF PROPERTY; PROCEDURES FOR RELEASE.

4 * * *

5 (f) PROCEDURE FOR RELEASE FROM ARREST OR

6 ATTACHMENT. Whenever property is arrested or attached, any

7 person claiming an interest i m it shall be entitled toaprompt

8 hearing at which the plaintiff shall be required to show why the

9 arrest or attachment should rot be vacated or other relief granted

10 e consistent with these rules. This subdivision shall have no

1lo aoplication to suits for seamen's wages when process is issued upon a

1~ 'RULES OF CIVIL PROCEDURE

12 certification of sufficient cause filed pursuant to TiUe 46, U.S.C.

I §§603 and 604 or to actions by the United States for forfeitures for

1 4 violation of any statute of the United States.

15 * * *

COMM EITEE NOTE

Rule E(4R(f) makes available the type of prompi post-seizure hearing

in proceedings under Supplemental Rules B 'and C that the Supreme Court

has called for in a number' of cases arising in other contexts. See North

Georgia Finishing, Inc. v. Di-Chemr Inc., 419 U. S. 601 (1975); Mitchell v. W.

T. Grant Co., 416 U.S. 600 974). Although post-attachment and post-

arrest hearings always have been available on motion, an explicit statement

emphasizing promptness and elaborating the procedure has been lacking in

the Supplemental Rules. Rule E(4)f) is designed to satisfy the

constitutional requirement of due process by guaranteeing to the shiDowner

a prompt Dost-seizure hearing at which he can attack the complaint, the

arrest, the security demanded, or any other alleged deficiency in the

proceedings. The amendment also is intended to eliminate the previously

disparate treatment under local rules of defendants whose property has

been seized pursuant to Supplemental Rules B and C.

The new Rule E(4)(f) is based on a proposal by the Maritime Law

Association of the United States and on local admiralty rules in the

Eastern, Northern, and Southern Districts of New York. E.D.N.Y. Local

Rule 13; N.D.N.Y. Local Rule 13; S.D.N.Y. Local Rule 12. Similar provisions

have been adopted by other maritime districts. E.g., N.D. Calif. Local

Rule 603.4; W .D. La. Local Admiralty Rule 21. Rule E(4)(f) will provide

uniformity in practice and reduce constitutional uncertainties.

Rule E(4)(f) is triggered bv the defendant or any other Derson with an

interest in the property seized. Upon an oral or written application similar

to that used in seeking a temporary restraining order, see Rule 65(b), the

court is required to hold a hearing as promptly as possible to determine

whether to allow the arrest or attachment to stand. The plaintiff has the

burden of showing why the seizure should not be vacated. The hearing also

may determine the amount of security to be granted or the propriety of

imposing counter-security to protect the defendant from an improper

seizure.

The foregoing requirements for prior court review or proof of exigent

circumstances do not apply to actions by the United States for forfeitures

for federal statutory violations. In such actions a oromDt hearing is not

RULES OF CIVIL PTRCEDURE 19

constitutionally required, United States v. Eight Thousand Eight Hundre(d

and Fifty Dollars, 103 S.Ct. 2005 (1983); Calero-Toledo v. Pearson Yicht

Leasing Co., 416 U.S. 663 G974), and could prejudice the government in its

orosecution of the claimants as defendants in parallel criminal proceedings

since the forfeiture hearing could be misused bv the defendants to obtain

by way of civil discovery information to which thev would not otherwise be

entitled and subject the government and the courts to the unneces arv

burden and expense of two hearings rather than one.

Form 18-A.

NDTI CE AND ACNOWLEDGET FOgR

SERVICE BY MAIL

United States District Court for the Southern District of New

York

Civil Action, File Number __

A. B., Plaintiff ) Notice and Acknowledgment

v. ) of Receipt of Summons

C. D., Defendant ) and Complaint

NOT I CE

To: (insert the-nam-eand address of the person to be served.)

The enclosed summons and complaint are served pursuant to Rule

4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure.

You must complete the acknowledgment part of this form and return

one copy of the completed form to the sender within 20 days.

You must sign and date the acknowledgment. If vou are served on

behalf of a corporation, unincorporated association (including a

partnership), or other entity, you must indicate under vour signature your

relationship to that entity. If you are served on behalf of another person

and you are authorized to receive process, you must indicate under your

signature your authority.

If you do not complete and return the form to the sender within 20

days, you (or the party on whose behalf you are being served) may be

required to Day anv expenses incurred in serving a summons and complaint

in any other manner permitted by law.

If you do complete and return this form, you (or the partyd on whose

behalf you are being served) must answer the complaint within 20 davs. If

you fail to do so, judgment bv default will be taken against vou for the

relief demanded in the complaint.

I declare, under penalty of perjury, that this Notice and

Acknowledgment of Receipt of Summons and Complaint W&a will have been

mailed on (irsert date).

Signature

Date of Signature

ACKNOWLEDGMENT OF RECEIPT OFSUM MONS AND COMPLAINT

I declare, under penalty of Derjury, that I received a copy of thesummons and of he complaint in the above-captioned manner matter at(insert address).

Signature

Relationship to Entity/Authority to Receive Ser-vice of Process

Date of Signature